Tag Archives: trial

What Jurors Bring Into The Deliberation Room

jury_room_525-300x204On Wednesday, a 12-member New York jury returned a verdict against Michael Steinberg, a senior portfolio manager with hedge fund SAC Capital Advisors LP, finding him guilty of trading using inside information that allegedly passed through four people before it reached him. An article in today’s Wall Street Journal about the deliberations of the jury forewoman, Demethress Gordon, provides a glimpse into how jurors bring their own experiences to the deliberation process, sometimes filling gaps left open by the trial attorneys.

Ms. Gordon entered the deliberations convinced Steinberg was innocent. The evidence against Steinberg included tips passed to him from his subordinate, an SAC analyst named Jon Horvath, about Dell and Nvidia. Steinberg allegedly placed trades within minutes after receiving the information from Horvath, who was a cooperating witness in the government’s prosecution. Ms. Gordon was initially not convinced by the evidence that Steinberg knew the tips were the fruits of confidential, “inside” information. She rationalized, as the story points out, “he [Steinberg] was the boss and relied on his staff to supply him with information they knew to be proper.”

Following the first day of deliberations, however, Ms. Gordon attended a screenwriting class “that happened to focus on the subtext of characters’ actions.” This made her receptive to an analogy offered, during the second day of deliberations, by another juror “who told her to imagine walking through the door. ‘He told me to go through the door,’ she said. ‘I understood what he meant, without him having to say, ‘Walk to the door. Turn the knob. Step through it.'” It “suddenly clicked. People can understand more than they are told . . . Mr. Steinberg must have known the information he received was based on nonpublic information . . . even if it wasn’t explicitly made clear.” After Ms. Gordon changed her mind and explained her reasoning to the sole remaining hold-out, who agreed, the jury returned a unanimous guilty verdict.

This perfectly illustrates how jurors will sometimes draw from their own outside experiences or intuitions to fill a problematic chasm in the elements of a case (or a defense). While I don’t know more about the evidence either side presented, this suggests to me (1) that the prosecutor did not have or put forth sufficient evidence that Steinberg would have understood, explicitly or implicitly, that the analyst’s tip was inside information (though it is telling that 10 of 12 jurors were apparently ready to convict at the end of the first day of deliberations), and/or (2) Steinberg’s defense attorney did not sufficiently anticipate and exploit this gap in the evidence. Either way, it’s interesting to be a fly on the wall.


The Recipe For “Successful Spontaneity” In the Courtroom

alg-court-jpgI’ve been reading Malcolm Gladwell’s Blink. Actually, I’ve been listening to the book on CD during my long commutes between Santa Barbara, where I live, and Los Angeles, where I mostly work.

I really like Gladwell, because he seems to dwell in the world of irony. In Blink, he capitalizes on how we often make more accurate decisions quickly, based on less information, than we do if we take more time and are weighed down with more information.

In one part of the book, Gladwell focuses on spontaneity. He discusses the improvisational comedy group, “Mother,” which performed at the Upright Citizens Brigade Theatre in New York city. He points out that, while the actors acted spontaneously on stage, reacting to what other actors said without any prearranged script, they were only able to perform so seamlessly because they spent a great deal of time both practicing and conducting post-performance analysis of each show.

Gladwell likened the actors’ level of pre- and post-performance effort to the preparation an army or navy undergoes in advance of an actual battle. Soldiers train, practice and even participate in highly elaborate war games to prepare for what they might encounter on the battlefield. Gladwell refers to this preparation as “creating the conditions [necessary] for successful spontaneity.”

It occurred to me that creating the conditions necessary for successful spontaneity in the courtroom can be viewed the same way. In other words, while the improvisational actors do not work off of a script, and soldiers cannot anticipate exactly what they will encounter on the battlefield, it is through meticulous preparation in advance of the performance or battle that both the actors and the soldiers are able to successfully respond spontaneously to whatever is thrown their way.

That same level of preparation is necessary in advance of trial in order for the lawyer to successfully respond spontaneously to whatever is thrown his or her way at trial. While most of us will craft an outline for direct or cross-examination, it is only by being thoroughly prepared that we can effectively deal with surprises, such as an unexpected evidentiary ruling, a witness who forgets or gets confused, or a judge who cuts our examination short.

Legendary trial lawyer Edward Bennett Williams took this level of preparation a step further. His preparation included “devil’s advocate research” which prepared him for surprises his opponent might hurl at him during trial. In an interview published in the Winter, 1986 issue of Litigation, he said:

“I believe that a lawyer should always have the devil’s advocate. In my office, the devil’s advocate researches each of our cases as we prepare it, persistently finding the holes and forcing us to prepare specifically against each of them. Whenever I go into court, I have completely prepared both sides of the case.

Some trial lawyers do not want to do this. They say, ‘My opponent is skillful. He will find all the law on his side. I am going to prepare only my side.’ But I don’t like it that way, and I don’t think it can be done that way.

I believe a lawyer must prepare both sides so that he will not be surprised by whatever may be hurled at him. After he is prepared in this way, even if his opponent does come up with some detail that may have escaped him, it cannot be so far from the facts already known that it will completely surprise him or put him at a total disadvantage.” (Litigation, Vol. 12, No. 2 (Winter 1986), p. 37.)

So prepare for trial like you’re taking the stage or walking onto the battlefield.


Don’t Forget: Jurors Are Quite Literally Everywhere

fredFew of us aspire to be a briefcase carrier when we start law school, but that’s what many of us find ourselves doing when we first pass the bar. At least if we’re lucky. I know everyone might not share this view, but it can be pretty nice to get paid to finish the education you started in law school by carrying the briefcase for a lawyer who’s been trying cases for a while. Not everyone is a good role model just because they’ve got experience but, as I’ve said before, you can learn at least one thing from every lawyer you meet.

One of the first things I learned during my bag carrying apprenticeship was not to forget when you were in trial, or about to start a trial, that jurors, or potential jurors, are literally everywhere around the courthouse.

I learned this the hard way, of course, when I made the mistake of talking loudly about the our motions in limine with the partner as we were walking out of the courtroom. “Shhhh,” he said. I didn’t know at first what he was talking about; it seemed like we were all alone in the hallway, or alone enough, so that I could speak freely. “The walls have ears,” he said. I still didn’t understand until, a few steps later, I noticed the familiar face of one of our prospective jurors, leaning against the wall, reading a dog-eared paperback.

When we got outside, and we were very clearly alone, he said, “Remember when you’re in trial that jurors are literally everywhere. And they hear and see everything.”

I was reminded of this point last week when working with Juryology blogger Rich Matthews on drafting a post about working with jury consultants. Rich pointed out that jurors pay attention to how parties and their lawyers act outside the courtroom. Are you or your client rude or impatient in getting through the security screening process coming into the courthouse? What about in the courthouse cafeteria during lunch? It is all information and they take it into the deliberation room.

I knew about one prominent LA trial lawyer who had done well, and owned a couple of exotic cars, but would only drive his Jeep Grand Cherokee when he was in trial. He felt it was important for jurors who saw him arrive at the courthouse (or leave at the end of the day) to see him driving a sensible, American-made car.

When someone at my firm is in trial, associates are encouraged to come down to watch at least a portion of the proceedings. But they are admonished in advance to (1) dress well, (2) behave with extreme decorum in the courtroom, and (3) do nothing to create the impression they are affiliated with the firm or the client, lest the impression they create is a poor one.


Five Ways To Effectively Use A Jury Consultant

ddffeeMany litigators, even those who do trial work, have only a hazy idea about how much value a good jury consultant can bring to trial preparation and presentation. I’m here, with my friend, colleague and Juryology blogger Rich Matthews, to change that. In this post I’m going to identify five ways a good jury consultant can improve your chance of winning at trial.

First, though, I want to acknowledge a challenging hurdle in getting a jury consultant involved in any case. Often, our clients hold the view that lawyers have the education, training and experience needed to do quality jury research, in addition to our day job of mastering and presenting the legal issues, so hiring a jury consultant is needlessly duplicative. Rich dispels this view right away. He says:

“Clients make the mistake of thinking lawyers should be experts in jury research, and it’s often true that the lawyer who would like to hire a trial consultant doesn’t know what to say to the client about that. I would say that it’s like hiring any other expert for the case– lawyers are skilled at the law, jury consultants are skilled at social research. They are two different disciplines entirely.”

How can you effectively use a jury consultant on your case? Here are five ways:

1. In The Courtroom During Voir Dire.

I’ve either heard it said, or said it myself, either way it’s true: selecting a jury is the least understood process of a trial. This is because most schools don’t teach it and the only way to learn is by doing it and not only are trials precious commodities these days, but judges frequently take over the function of voir dire. As a consequence, many of us are ill-prepared to do voir dire well.

Jury consultants can help in formulating the right types of questions to sound out potential reasons why your client could benefit from challenging particular jurors. “Lawyers,” Rich says, “tend to have the wrong priorities in voir dire. They prioritize arguing their case over the most important thing in voir dire which is to get jurors talking and responding to each other.”

Even if the process is spread over multiple days, such as selecting a jury for a long cause trial, everything moves pretty fast in voir dire. A good jury consultant can help slow the process, or at least help your trial team sort through the mass of data being generated in this tight time-frame, so that intelligent decisions can be made about the need for specific juror challenges.  As Rich points out, jury consultants are skilled at “tracking all the hundreds of bits of data flying in the courtroom all the time and coalescing that into judgment.”

2. In Developing A Jury Profile Before Trial.

Before anyone enters the courtroom, a jury consultant can help the trial team develop a plan for what kinds of jurors (1) they are likely to encounter in a given venue, and (2) of these, which may come into the case with particular biases that will impede their ability to receive and process evidence fairly (by “fairly” here I naturally mean in a way that is favorable to my client). As Rich says:

“While attorneys are keeping up with developments in the law and managing your cases, the best trial consultants are monitoring all kinds of public opinion data and trends. So trial consultants start out in a much better position to develop a profile for the jury for counsel to follow during jury selection.”

Thus, even if your client is resistant to the cost of having a jury consultant present in the courtroom during voir dire or other crucial parts of the trial, there may still be value in the lesser investment of involving a consultant before trial starts.

3. Working With Focus Groups.

You know those parts of the case which you’re most worried about? When the trier of fact is a panel of jurors, those parts of the case are often not legal issues, but “juror issues.” Rich notes that “easily the best way to assess your case’s juror issues, as distinct from the legal issues,” is to work with a jury consultant and one or more focus groups. “Lawyers,” Rich says, “think like lawyers and focus very closely on the precise laws, whereas jurors are more ‘gestalt’ kind of thinkers and are more interested in a broad kind of justice and morality. This difference in focus will lead lawyers to overestimate the impact of a statute/rule/jury instruction on laypeople. The only way to get on the same plane as laypeople is with a focus group.” Anyone who has done focus group research knows it’s going to yield the most valuable information–useful conclusions–if the research is directed and interpreted by someone with the proper training.

4. Case Evaluation.

Most of us, myself included, tend not to think about involving a jury consultant until after the decision to take a case to trial has been made. Rich feels this is a mistake, since we tend to develop a kind of tunnel vision about the quality of our case or defense, and pass that on to influence our clients. Instead, “it’s imperative  to consider the ‘social zeitgeist,’ or what is happening in the collective social consciousness — as well as understand the predictable places where laypeople will deviate from how lawyers think —  when valuing a case or deciding whether to take it to trial.” Good jury consultants should be able to channel into this and inform your case evaluation.

A bonus to involving the consultant earlier than later is that he or she can help you shape your discovery to fit a theme that is likely to resonate with jurors, as opposed to the more common approach of trying to pigeonhole evidence gathered at random into a theme that is developed for the first time on the eve of trial.

5. Witness Preparation.

A consultant can help prepare a witness for testimony in deposition or a trial in a way that most lawyers cannot. I’m afraid I have to agree with Rich when he says:

“Lawyers have proven woefully inadequate at witness preparation. Most lawyers think that reviewing the facts and saying ‘Just remember to tell the truth’ constitutes good witness preparation. It doesn’t. Imagine a witness who actually has skills at testifying– not just what to say, but how to say it; how not to bait the bear; how to tell his or her story to jurors. It’s so much more than just ‘Here, re-read your deposition transcript and make sure you follow it precisely or else we’re going to be in trouble.’”

Ok, I’m not that bad at witness preparation, since it’s something I’ve long recognized to be crucially important. But yes, Rich, we get the message!

One last word on hiring a jury consultant, devote the time and effort to finding a good one. As Rich says, there are “lots of mediocre consultants flooding the marketplace.”


What Your Presence Tells The Jury Before You Say A Word

pokliI’ve previously written about how young lawyers enjoy an undeserved reputation for honesty. It’s a gift. Don’t squander it.

Similarly, when jurors encounter a trial lawyer for the first time, the lawyer’s mere presence in the courtroom says many things before the lawyer opens her mouth. This observation comes from the trusted Professor McElhaney. In a chapter from Litigation (ABA 1995) entitled “The Most Important Witness,” he suggests that a trial lawyer’s presence in the courtroom implicitly says to the jury:

  • “I have studied the facts and understand what this dispute is all about. You can trust me to steer you straight.
  • I have carefully screened the witnesses. I will only call those who will tell you the truth.
  • I know the law that governs this case. Justice is on our side.
  • If I introduce evidence, it is because it is important.
  • If I leave something out, it is because it is not important.
  • And If I attack a witness, it is because he is not telling the truth.” (Id. at 9.)

Of course, just as with a young lawyer’s unearned reputation for honesty, each of the above assumptions can be quickly proven wrong. Witness choice is a perfect example. While you sometimes have no choice but to present a dodgy witness, this should not be undertaken lightly. As Professor McElhaney points out:

“[T]he very act of putting the witness on the stand implies that you are vouching for his credibility. . . . Whom do the jurors blame for a bad witness? Listen closely to the comments clerks and bailiffs hear every day. ‘I wonder where she got that guy?’ ‘Where did he dig him up?’ ‘Can’t he find someone better than that?'” (Id. at 11.)

Another opportunity to prove the jury wrong in their initial positive impression arises from how you organize your evidence presentation, including direct examination of your witnesses. How you conduct the examination, what you leave in and what you leave out can affirm or undermine the assumption that “If I introduce evidence, it is because it is important.” As McElhaney says it:

“A confused, rambling examination suggests a disorganized understanding of the facts. Not only does it fail to tell the story effectively, a poor direct examination is the living picture of a guide who cannot be trusted to lead a jury through the thicket of facts in the case.

Dwelling at length on small points is a little different. At first it suggests that the seemingly insignificant detail will become important later on.

Why? Just putting it in the case says it is worth the jury’s while.

So the first time the fact that took so long to explain turns out to be meaningless, the jury feels cheated. When it happens again, they wonder whether the lawyer is trying to kick sand in their faces or is just inept.” (Id.)

The jurors are your friends, your students and your wards. Don’t kick sand in their faces.


Edward Bennett Williams: Don’t Lose Your “Instinct For The Jugular”

8300330C_1I found a fantastic interview of trial legend Edward Bennett Williams from the Winter, 1986 issue of Litigation which I intend to read and re-read like the Bible.

Among the myriad of topics he discusses was the kind of “team” he works with at trial, which led to a discussion of trying “big document” cases. Many lawyers, even seasoned trial lawyers, tend to make the assumption that the bigger the issues to be decided by the jury, the more witnesses and paper–documents–are needed to prove a party’s case or defense. If an outsider was to simply look at the kind of discovery conducted in any big case, he or she would easily assume that, if the documents were worth seeking in costly discovery, they must have been germane and, ultimately, indispensable to winning.

Williams takes issue with this kind of thinking. He suggests that, in all but the most complex cases, lawyers tend to “multiply documents” unnecessarily. In the end, being unnecessarily document intensive does not further their clients’ interests or bring them closer to victory. Responding to interviewer Priscilla Anne Schwab, Williams says:

“Mr. Williams: I was brought up in a school of practice in which one person tried a case and tried it in toto. Even with some help, in the courtroom there was only one voice. And I like that.

Ms. Schwab: What about a complex case, say, an antitrust action with thousands of pages of documents, hundreds of witnesses. How can you handle that in a courtroom singlehandedly? With total control?

Mr. Williams: My impression of that so-called ‘big document’ case is that 95 percent of the documents are worthless. Just piles of paper to impress the jury. One of the great tragedies of litigation today is these paper wars. The whole profession gains nothing but disrepute when one of these big firms puts 21 lawyers on a case, and they start multiplying documents, paper times paper.

Now obviously in a few cases, the issues are so complex that there are, maybe, thousands of documents. But my experience has been that law firms multiply paper unnecessarily. They make litigation more prolific than necessary. They don’t have an instinct for the jugular. They don’t isolate the major issues of the case and simplify them into comprehensibility. And they engage in massive overkill in discovery.

Ms. Schwab: But there always seems to be a need for more discovery. You say yourself you must uncover every fact, however remotely relevant.

Mr. Williams: True, but discovery today is not used primarily to uncover facts. It’s used to delay, to obfuscate, and, too often, to replace real investigation.” Litigation, Vol. 12, No. 2, Winter 1986, p.30.

As an armchair expert on the topic of laziness, I wonder if the tendency to use excessive discovery rather than going “for the jugular,” as Williams puts it, stems from the fact that isolating “the major issues of the case and simplify[ing] them into comprehensibility” takes really hard work and focused thought. I suspect this is part of it. I suspect the other part is related to the fact that there is big money in putting armies of lawyers on cases and multiplying paper. Cynical me!

Whatever the cause, the end result brings clients no closer to victory. So, even if you feel the need to burn everything to the ground in discovery, remember when it comes time to try the case to isolate the major issues and “simplify them into comprehensibility.”


Should You Do A Post-Trial “Postmortem”?

ii_a_127Living through trial. The only thing most of us think about is winning. (Unless, like me, you get that 11 pm craving for carne asada burritos con guacamole, then you think about that, too.) After the verdict, win or lose, the last thing everybody wants is to go back through it and take stock of what happened, what went well or went poor and how we can do better next time.

But there is real wisdom, once the dust truly settles, in going back over everything to ponder, “What did we learn from this?” For institutional clients of every size, trials are a huge investment of time, money and resources. It makes a lot of sense for them, ideally in conjunction with their counsel, to do a trial postmortem. This not only helps prevent future “situations” requiring litigation but, if cases do arise in the future, it enhances the chances of success. Astute lawyers recognize the value and opportunities of this process and collaborate with their clients to do a comprehensive postmortem, possibly for free! Even if the client shows no interest, much can still be gained if only the members of the trial team come together for a postmortem session.

A generous article on this topic, “Trial ‘After Action Reviews,'” appeared in the August, 2013 issue of For the Defense. The authors, Milwaukee lawyers Ric Gass and Michael B. Brennan, point out that “Army generals as far back as Caesar in his ‘Commentaries on the Gallic War’ have learned strategic and tactical lessons through after action reports.” (Id. at 29) The article is sweeping in its scope. Among the valuable points made by the authors was the following:

“Crucial to the success of an after action review is, to use the military jargon, ‘leaving your rank at the door.’ If you are the lead counsel, you need to be willing to listen and to learn from the observations of others on your team. You were probably too busy while doing that crucial cross-examination to take in everything else in the courtroom, such as reactions of jurors, or of the judge or opposing counsel. But your co-counsel, your paralegal, or your jury consultant did watch for those reactions, and you need to hear what they saw.” (Id.)

The authors suggest some topics for review during the postmortem, including:

  • Jury Research: “Did the jury research accurately predict the attitudes and reactions of the jurors and the ultimate result on liability and damages?” (Id.)
  • Opening: “What worked well for us? What worked well for opposing counsel?” (Id.)
  • Direct Examinations: “Did a certain witness’s testimony connect with the jury, and if so, why?” (Id.)
  • Cross-Examinations: “Was the tone of the questions too harsh or too lenient? . . . How many of the admissions made on cross-examination made it into the closing argument?” (Id. at 30.)
  • Expert Witnesses: “Would we use this expert again, and more importantly, why?” (Id.)
  • Closings: “What worked well for each party, and why?” (Id.)

Finally, the authors point out that:

“Being a trial lawyer is a lifelong learning experience. . . . If you have had any kind of trial, but especially a major trial, you need to appreciate it for all the experience it brings and to wring every last piece of learning that you can from the experience. . . . [Y]ou need to figure out how to carry that understanding and the techniques that went right to your next trial.” (Id.)

I know first-hand how much clients appreciate it if, after the trial, you offer to travel to their offices and help your in-house counterpart prepare and present a postmortem, with the specific goal of avoiding similar situations in the future. They really, really appreciate it when you don’t charge them for the experience. If your trial counsel won’t do this for you, ask them why not. Then remember to call me.


%d bloggers like this: